AC-2025-LON-001365 - [2025] EWHC 2086 (Admin)

The third stage was that Ofcom was required to publish its advice. This was to happen as soon as reasonably practicable after Ofcom advised. Ofcom published its advice on 25 March 2024 (the advice having been provided to the Secretary of State on 29 February 2024).

The fourth stage was for the Secretary of State to make draft regulations prescribing the Category 1 conditions. Again, this was to happen as soon as reasonably practicable after Ofcom advised.

Between March 2024 and February 2025 officials prepared 14 Ministerial Submissions in relation to the making of the regulations. During this period there was a change of Government. The General Election was called on 22 May 2024 and the new Government was formed on 7 July 2024. The new Government was not shown earlier Submissions, but the work that had been done by officials in the period between March and July 2024 informed the advice that was given to the new Government.

On 7 March 2024, the then Secretary of State was asked to decide whether to accept Ofcom’s recommended thresholds, so that work could commence on drafting the relevant secondary legislation. Officials recommended that she do so. Initially, the Secretary of State was not content with the advice. She was particularly concerned that “the likes of Amazon was likely to be captured by Category 1… but not Pornhub… [and that] small but risky services are not covered.”

On 18 March 2024, the Secretary of State was provided with a Submission which made it clear that Category 1 duties were not primarily aimed at pornographic content or the protection of children (which were dealt with by other parts of the Act). Rather, the aim of Category 1 was to capture services that have a significant influence over public discourse. The submission offered, as a possible option, requesting information from Ofcom as to how content recommender systems function on different types of service. It was envisaged that this might indicate that that there were differing levels of impact on viral dissemination, and that could be used to carve out certain content recommender systems from the ambit of the regulation.

Officials then spoke to Ofcom policy directors who advised that there was very little information available on how content recommender systems work across different types of service, and that it would be extremely difficult to make robust regulations that differentiated between different types of service. On 21 March 2024, a further submission was put before the Secretary of State in which it was said that Ofcom did not have additional information about how content recommenders work on different services, so that would require additional work which would impact on the timeline for laying regulations. It was therefore suggested that the Secretary of State should not ask for more information about this.

On 9 April 2024, the Secretary of State received a letter from “the Mid Size Platform Group”. This is a group that comprised seven (subsequently eight) online services, including the first claimant. The letter captured what, in these proceedings, the first claimant say is a key problem with regulation 3(2):

“Definition of recommender systems: …the proposed definition is too broad and will encompass essentially any platform in the sector which organises content in any way. Content recommender systems are diverse in their design and application. While we recognise some content recommender systems are designed to encourage users to chase sitewide virality, which may lead to negative outcomes, others are designed for safety reasons, for marketplace efficiency, or are simply an ancillary part of the service. For example, they can be used to ensure that content deemed safe, age appropriate, or produced by a user with a positive safety track record is more visible to users. In addition, it would catch services that allow users to access recommended content but do not force them to use an algorithmic feed if they prefer not to. We therefore recommend that the definition of recommender system is made more detailed and nuanced, rather than simply the presence of the functionality, to avoid catching a high number of less risky platforms in Category 1. For example, systems with a safety component, systems merely reflecting past purchase history, as well as systems that are a minor and ancillary component of the service, should be exempted.”

On 22 May 2024 (the day on which the general election was called), departmental officials held a workshop with Ofcom. By this point, the Secretary of State had indicated that she agreed with officials that she should follow Ofcom’s advice. A paper circulated in advance of the workshop said that the proposed definition of a content recommender system had been criticised for being too broad. It raised the following, among other, questions:

“• Are there any recommender systems that Ofcom would discount in line with the definition?

• Wikimedia raised concerns that the broadness of the definition would capture systems such as this [the Wikipedia “New Pages Feed”] - does Ofcom agree with this?”

The record of the discussion that took place at the workshop does not directly address this issue. However, during the election period, officials considered the concern that the definition of a content recommender system was too broad. Options were discussed which would exclude Wikipedia. They included excluding charitable services, excluding services without paid-for advertising, narrowing the definition of a content recommender system to only include systems that are “integral” to the operation of the service, amending the definition of “users” to include only those that interact with the content recommender system, and commissioning further research from Ofcom. Officials concluded that introducing a change without commissioning further research from Ofcom could lead to unintended outcomes. In particular, the opacity of content recommender systems meant that narrowing the definition could lead to the exclusion of services that ought to be included, and commissioning further research would lead to significant delay. Also, the pace of technological developments was such that any further research would require continual reassessment.

On 5 July 2024, a new Government was formed. Ms Rowland says that the work that had been conducted up to that point fed into the material that was provided to the new Secretary of State. She says he was extremely engaged with the setting of the Category 1 thresholds and that she had a number of discussions with him and/or his Special Advisors about the issues.

On 18 July 2024, the new Secretary of State was first provided with a formal Ministerial Submission in relation to the regulations. He was told that Ofcom’s recommendations were “broadly in line with… expectations… in terms of the number and type of services in scope” and that “[w]hilst there are some outliers [and elsewhere in the document Wikipedia was identified as an outlier]… the services likely to be in scope are largely justifiable…” He was informed that some companies, including Wikipedia, had criticised the thresholds and believed that the recommendations were too broad, and that many parliamentarians were particularly concerned about Wikipedia being in scope. It was then said, “Wikipedia has content of democratic important and journalistic content…” Officials recommended following Ofcom’s advice. The Secretary of State was given a list of services that were likely to be captured by the proposed category 1 thresholds, and also a list of services “which could possibly be captured”. Wikipedia was in the latter list. Officials advised that they had not expected Wikipedia to be in scope, but it had raised the possibility that it could be due to the proposed definition of a content recommender system.

The Secretary of State was informed that he was required to take into account the likely impact of the number of users of the service, and its functionalities, on viral dissemination, as well as any other characteristics or factors that the Secretary of State considered relevant. He was told that Ofcom had concluded that content recommender systems played a particularly significant role in the dissemination of content because they are typically relied on by services to amplify content to a wide set of users, and that:

“Ofcom judged that where services have a very large number of users, a content recommender system alone is sufficient for content to be disseminated easily, quickly and widely. This is because a service’s content recommendation system results, in and of itself, in the dissemination of content to a very large audience without the need for users themselves to further share content.”

Attention was drawn to limitations on the evidence and research that informed Ofcom’s advice. Attention was also drawn to the concerns expressed by the Mid-Size Platform Group, but it was said that it would be difficult to tailor the thresholds to meet its concerns. It was pointed out that Ofcom had not been able to provide more granular detail about how different content recommender systems worked in the context of different services, that they were often opaque and that they changed frequently, that Ofcom wanted to do further work to understand that better, but that it would need to use its information gathering powers to do that.

A Departmental Minister, Baroness Jones, asked for a meeting to discuss the Submission with officials. That took place on 25 July 2024. Baroness Jones expressed concern that certain “outliers” might fall within the scope of Category 1 services, particularly Google Maps, Google Photos, Amazon and eBay (but was apparently less concerned about the potential inclusion of Wikipedia). Following that meeting, officials considered options for excluding certain “outlier” services, including Wikipedia.

On 31 July 2024, a further Ministerial Submission recommended following Ofcom’s advice. Options were put forward which could potentially have the effect of excluding certain outlier services (including online encyclopaedias). Officials advised that these options were not recommended because of the risk (in the absence of further research) of inadvertently creating loopholes. It was recognised that further research could be conducted into viral dissemination and to understand more about content recommender systems. However, Ofcom had indicated that they did not have a statutory power to conduct such further research (but that they would be able to do so once the first regulations were in force). It was also said that there were policy reasons why online encyclopaedias should be within the scope of Category 1, and that Wikipedia held content of democratic importance and journalistic content. The options that were presented included amending the definition of a content recommender system, but it was said that it was difficult to do this in a way that was objective, and evidence based, and which did not create any risk of loopholes. In providing this advice, officials drew on the work that had been done, including engagement with Ofcom, over the previous months.

On the same day, the Minister responded, “I reluctantly agree with the proposals in the submission as I recognise that our hands are largely tied by the constraints of the Act.” The Minister also directed officials to undertake stakeholder liaison.

A meeting then took place on 12 August 2024, attended by the Secretary of State, the Minister and officials. The Secretary of State considered the question of online encyclopaedias but was content not to seek further advice. He indicated that he was broadly content to accept Ofcom’s recommendations, subject to an issue concerning suicide forums. That issue was addressed in a further Submission. On 17 September 2024, the Secretary of State agreed with the recommendation to approve Ofcom’s proposed conditions.

Ms Rowland correctly observes that Ofcom did not provide advice about the specific impact of each functionality or characteristic of each service on that service’s dissemination of content. Its research was undertaken at a higher level of generality and considered how different functionalities and characteristics worked across a range of different types of service, and their impact – across that range – on viral dissemination. Its advice was provided on that same basis, and that was how the Secretary of State understood it. He was not, therefore, under a misapprehension that content recommender systems worked in the same way across different types of service, or that they affected viral dissemination to the same degree. He was advised that they operated in an opaque manner that was subject to rapid change, but there was a limit to the advice that could be provided without Ofcom exercising its information gathering powers.

A draft of the regulations was laid before Parliament on 16 December 2024. It was approved by a resolution of each House of Parliament, as required by section 225(8) of the Act. The Secretary of State then made the regulations on 26 February 2025. They came into force the following day.

Regulation 3 states:

“3 Category 1 threshold conditions

(1)

The Category 1 threshold conditions are met by a regulated user-to-user service where, in respect of the user-to-user part of that service, it—

(a)

(i)

has an average number of monthly active United Kingdom users that exceeds 34 million, and

(ii)

uses a content recommender system, or

(b)

(i)

has an average number of monthly active United Kingdom users that exceeds 7 million,

(ii)

uses a content recommender system, and

(iii)

provides a functionality for users to forward or share regulated user-generated content on the service with other users of that service.

(2)

In paragraph (1), a “content recommender system” means a system, used by the provider of a regulated user-to-user service in respect of the user-to-user part of that service, that uses algorithms which by means of machine learning or other techniques determines, or otherwise affects, the way in which regulated user-generated content of a user, whether alone or with other content, may be encountered by other users of the service.”